OLALE V. EKWELENDU.
| Pages | 145-176 |
OLALE V. EKWELENDU
145
CRAIG, J.S.C.: On the 13th June, 1989 the Court heard arguments in respect of the
two applications which came before it and reserved its ruling till today 11th July,
1989.
In this respect, I have read in draft, the Reasons for Ruling given by my learned
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brother, Eso, J.S.C. and I agree entirely with his statement of the law and his legal
conclusions.
For the reasons contained in the said lead Reasons for Ruling, I too would order
that the appellants' brief be filed and served on or before 13th July, 1989 whilst the
Respondents' Brief would be filed thereafter within the normal time prescribed by
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the Rules of this Court.
OLALE V. EKWELENDU
15
C.D. OLALE
V
20
G.O. EKWELENDU
SUPREME COURT OF NIGERIA
OBASEKI,
J.S.C.
UWAIS,
J.S.C.
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OPUTA,
J.S.C.
AGBAJE,
J.S.C.
CRAIG,
J.S.C.
21st July, 1989
APPELLANT
RESPONDENT
SUIT NO. SC 54/1988
30
Land Law - Declaration of Right - Abandoned Property - Abondoned Property (Custody
and Management) Edict, 1969. - Identity of land - Survey Plan - Acid test in Kwadzo v.
Adjei - Proof of Title -Acts of Ownership.
Practice and Procedure - Pleadings - Basic Rules - Uses - liwtsverse Onus of Proof
-
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Unchallenged evidence.
Appeals - Evaluation of Evidence - Power of Appellate Court - Issues for determination -
where hypothetical - attitude of court thereto.
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ISSUES:
1.
Whether a plaintiff who bases his case on the Adandoned Property Edict has to
prove his title to the land in dispute.
2.
Whether the identity of a piece of land for which there is a survey plan be can said
to be uncertain.
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3. Whether a tenant can probe the root of title of his landlord.
4.
Whether an averment in a statement of defence that a defendant is not in a
position to admit or deny an allegation contained in a plaintiff's statement of claim
amounts to a proper traverse as to raise an issue of fact.
5.
Whether an appellate court can evaluate evidence and substitute its own
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inference for that of a trial judge.
6.
What is the attitude of a court of law to questions which have no nexus with the
matters before it?
7.
What is the effect of a sale of an "abandoned property" after the promulgation
of the Abandoned Property (Custody & Management) Edict, 1969 of Rivers State?
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NIGERIAN SUPREME COURT CASES
[1989] 3 N.S.C.C.
FACTS:
The Plaintiff/Respondent in the High Court, Port Harcourt sued the Defendant/Ap-
pellant claiming a declaration of title to a landed property, an account and injunction.
He pleaded a survey plan of the land, which he called No.2 Amaigbo Lane, Mile 2,
Diobu, Port Harcourt and tendered it at the hearing.
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The Respondent, an lbo man, claimed that he left the building which he had
already completed and fled when the civil war broke out. Subsequently, the Rivers
State Government took over the building as an abandoned property and ad-
ministered it as such. When the war was over, the Respondent returned to Port
Harcourt and found the Appellant in occupation. The Respondent then applied to 10
the Abandoned Property Authority and the property was released to him.
However, the Appellant refused to yield up possession of the property in dispute.
The Respondent gave him a quit notice through his counsel, and in reply, the
Appellant's counsel claimed for refund of expenses incurred in making the building
habitable.
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In his defence, the Appellant alleged that he had bought the property which he
called No.34 Amaigbo Lane, Diobu, Port Harcourt from one Nnata Wobo, and
pleaded a conveyance executed to him. He however, admitted that he went into
possession and further developed the property with the consent of the Abandoned
Property Committee.
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The trial judge dismissed the Respondent's claims on 2 grounds. First, that the
identity of the land in dispute had not been established with certainty as there was
no evidence that the 2 numbers referred to one and the same plot. Secondly, that
the Respondent did not give any evidence as to how he came by the land itself.
The Respondent appealed to the Court of Appeal, arguing,
inter alia,
that the 25
identity of the land was never in dispute. The Court of Appeal held that the real
dispute between the parties was as to the ownership of the abandoned property
under the Abandoned Property (Custody and Management) Edict 1968, not as to
the land on which the property stood.
Dissatisfied with the decision of the Court of Appeal, the Appellant appealed to 30
the Supreme Court, contending,
inter alia,
that the Court of Appeal erred in holding
that the Respondent could own the property in dispute without the legal or equitable
estate of the land. The Respondent, in his argument, submitted that the documents
tendered adequately supported his claims and that the Court of Appeal was right to
set aside the judgment of the trial court.
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HELD:
1.
It is not necessary for a plaintiff who bases his entire case on the Abandoned
Property Edict, 1969 of Rivers State to go into an entirely unnecessary excursion
into the modes and niceties of proof of title to land as decided in
ldundun & Ors.
v. Okumagba
and to explore the limits of
Ekpo v. Ita.
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2.
Where there is a plan of the land in dispute, it cannot be rightly said that the land
in dispute has not been ascertained with certainty.
3.
Once there is a survey plan of a disputed property and that plan satisfied the acid
test laid down in
Kwadzo v. Adjei,
the land cannot be said to be uncertain.
4.
All arguments based on the so called conflicting evidence as to the house 45
numbers of the house on the land in dispute on the issue of the identity of that
house pale into insignificance once there is a survey plan of the land itself upon
which the house stands.
5.
One of the cardinal principles of law of evidence is that a tenant cannot and is
not allowed to dispute the title of his landlord. See section 151 of the Evidence 50
Act_
6.
In order to raise an issue of fact that will go to trial, there must be a proper traverse,
and that, that traverse must be made either expressly or by necessary implication.
A refusal to admit or deny does not raise an issue of fact. Trial courts merely try
issues of fact raised by the parties in their pleadings.
OLALE V. EKWELENDU
147
7. Where there is no proper and effective traverse of the case pleaded by the plaintiff,
no issue of fact arises from the pleadings and that being so, the plaintiff should
have had judgment on the pleadings. There is no need for a trial when there is
no issue arising from the pleadings warranting such a trial.
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8. The action of the Court of Appeal in carrying out evaluation of the evidence which
was mainly documentary and did not involve credibility of witnesses and making
the necessary inference from the evidence which the trial judge failed to do was
proper as the Court of Appeal was in a good position to carry out that exercise.
9.
The 1979 Constitution which established the Supreme Court has not conferred
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on it jurisdiction to deal with hypothetical academic or political questions. So,
the Supreme Court will not deal with or determine hypothetical question which
has no nexus with the matters on appeal before the court.
10.
Before a sale of an abandoned property after 27 May, 1967 can be valid, evidence
must be produced that the Military Governor of Rivers State had given his
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approval to that transaction. If this is not so, the sale is null and void, applying
section 15 of the Abandoned Property (Custody & Management) Edict, 1969.
[As to
Ascertaining the Identity of Land with Survey Plan,
see:
Awote & Ors. v.
Owodunni & Anor.
[1987] 1 N.S.C.C. 591.
[As to
Denial of Averments in Pleadings,
see:
Oguma Associated
Co.
(Nig.) Ltd. v. 1BWA Ltd.
[1988] 1 N.S.C.C. 395
Lewis & Peat (NRI) Ltd. v. Akhimien
[1976] N.S.C.C. 360
Owosho & Ors. v. Dada
[1984] N.S.C.C. 553.
[As to
Evaluation of Evidence by Appellate Court,
see:
Abibu v. Binutu & Anor.
[1988] 1 N.S.C.C. 55.
CASES REFERRED TO IN JUDGMENT:
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1.
Ekpo v. lta 11
N.L.R. 68.
2.
ldundun v. Okumagba
(1976) 9-10 S.C. 229.
3.
Kwadzo v. R.K. Adjei
10 W.A.C.A. 274.
4.
Ebba v. Ogbodo
(1984) 4 S.C. 84.
5.
Dr. Ladipo Maja v. Dr. Stocco
(1968) N.M.L.R. 372.
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6.
Akpapunna v. Nzeka
(1983) 2
1.
7.
Okafo v. Idigo
(1984) 6 S.C. 1.
8.
Elias v. Suleiman & Ors.
(1974) 1
N.M.L.R. 193.
9.
Sodimu v. N.P.A.
(1975) 4 S.C. 75.
10.Ogunsanya v. Taiwo
(1970) 1 All
N.L.R. 147.
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11.
Okai 11 v. Ayakar 11 12
W.A.C.A. 31.
12.Arabe v. Asaulu
(1980) 5-7 S.C. 93.
13.
Messrs Lewis & Peat (N.R.1) Ltd. v. Akhimien
(1976) 1 All N.L.R. (Pt.l) 460.
14.Overseas Construction
Co.
(Nig.) Ltd. v. Creek Enterprises (Nig.) Ltd. & Anor.
(1985) 3 N.W.L.R. (Pt.13) 407.
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15.J.E.
Ehimare & Anor. v. Okaka Ernhonyon
(1985) 2 N.W.L.R. (Pt.2) 177.
16.Onyekaonwu & Ors. v. Ekwubiri & Ors.
(1966) 1 All
N.L.R.
32.
G.A. Graham-Douglas, S.A.N.
(with him
J.C. Okonkwo)
for Appellant.
I.M. Onwuamuegbu (Miss)
(for
G.E. Ezenko)
for Respondent.
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CRAIG, J.S.C.:
(Delivering the lead Judgment) This is an appeal against the
judgment of the Court of Appeal, Enugu dated 4th December, 1985. In that Court,
the Justices of the Court had reversed the judgment of Okara, J., who had dismissed
the claims of the plaintiff/appellant in the High Court of Port- Harcourt. Those claims
were for a declaration that:-
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